The Crime of Punishment

The Crime of Punishment

The New York City Council is preparing to pass a package of bills that will radically change the way the city enforces and prosecutes “low-level” offenses, such as public consumption of alcohol, littering, and public urination. According to Speaker Melissa Mark-Viverito, a “staggering” number of criminal summonses get issued for these types of “broken windows” crimes and violations—more than 350,000 in the 2014 alone. But what troubles Mark-Viverito about these figures isn’t the disorder that they represent but the potentially negative effects that receiving a summons can have on the lives of people who litter, drink from open containers, and urinate in public.

Currently, the police have the option to arrest someone openly drinking alcohol—an option they rarely exercise—and the guilty violator can receive a range of punishments, from a small fine to five days in jail. The new legislation entirely eliminates the possibility of arrest for public drinking, prescribing instead a maximum civil penalty of $25. The penalty can be contested, but it will not escalate even if ignored. At most, the unpaid fine could be sent into collection. Most of the punishments for public urination, littering, spitting, and violating park rules will be similarly reclassified as civil offenses.

In arguing for these changes, Mark-Viverito describes a justice system out of Kafka’s nightmares, “in which those accused of low-level non-violent offenses . . . face a permanent criminal record or jail time for behavior as minor as violating a parks rule.” In reality, people caught violating a parks rule are almost always given verbal warnings. Police may issue a criminal summons instructing the violator to appear before a judge. In the event that the summons is ignored, the court will issue a warrant for the violator’s arrest, which will be effected the next time he is stopped for committing an offense. He may then get locked up for a night. The prospect of a low-level offender spending any time in jail, then, is predicated on his committing a series of antisocial violations and ignoring a court date.

According to Mark-Viverito, though, and the many supporters of the reform package, virtually any enforcement of “quality of life” laws is annoying and inconvenient—and almost certainly racist, to boot. Brooklyn council member Jumaane Williams previously sponsored a bill to end enforcement of turnstile-jumping in the transit system, arguing that being arrested can be “very disruptive” and “cause financial hardship” to the arrestee. During the hearing on the current legislation, Williams asked Elizabeth Glazer of the mayor’s office of criminal justice, “How would you respond to advocates who believe that low level offenses such as ‘open container’ are charged improperly, to get communities of color entered into the criminal justice system?” Glazer rejected the idea that New York City is waging war on its minority population, affirming what the statistics demonstrate, that “summonses are issued in response to complaints.”

Council member Rory Lancman of Queens made what he apparently considered a prima facie argument demonstrating that quality-of-life enforcement in New York City is manifestly racist. “It cannot be ignored,” said Lancman, “that we are having this conversation in the context of extraordinary racial and ethnic disparity in policing in New York City.” He then cited the contrasting level of summonses between the 40th precinct in the Bronx and the 111th precinct in northeast Queens: in the 40th, which is 98 percent black and Hispanic, 270 summons were issued for every 100 residents between 2001 and 2013; in the 111th, which is 12 percent black and Hispanic, only 26 summons were issued for every 100 people over the same period.

These data reflect not a policing disparity but rather a disparity in the number of crimes committed. The 40th precinct had seven murders and 29 rapes in 2014, while the 111th had no murders and one rape. These discrepancies run the gamut down to the lowest misdemeanors. Lancman’s glib assertion of racist law enforcement overlooks the facts regarding crime in these neighborhoods.

Council member Antonio Reynoso of Brooklyn finds fault with even the most lenient applications of punishment for quality-of-life violators. Angry that an unpaid $25 fine could wind up in collections, Reynoso fumed: “We’re going to end up saddling poor communities with debt, and continue a systematic disenfranchisement of mostly minority communities.” When Glazer, the mayor’s representative, pointed out that the council’s proposed legislation contains an option for people to perform community service in lieu of paying a fine, Reynoso countered that this still represents “time that people in poor communities are going to be doing . . . people that might have to lose a day of work in order to do that community service, or time that they might want to do something else. Maybe they don’t want to be picking up garbage on weekends?”

Most people would prefer not to do community service or pay parking tickets or go to jail. The desire to avoid such unpleasantness is so central to human existence that society has evolved a system of laws to ensure that civilization can function by penalizing deviant behavior. The New York city council evidently considers these timeless notions of justice—which can, after all, ruin weekend plans or break up a playground beer party—incompatible with a fair and progressively minded city.